Citation Nr: 1234328
Decision Date: 10/03/12 Archive Date: 10/11/12
DOCKET NO. 08-38 200 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin
THE ISSUES
1. Entitlement to an effective date prior to March 30, 2007, for service connection of arteriosclerotic heart disease (ASHD).
2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus, type II.
3. Entitlement to an initial evaluation in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
W.H. Donnelly, Counsel
INTRODUCTION
The Veteran had active duty service with the United States Army from September 1965 to September 1967. From March 1980 to February 1988, the Veteran was in Active Guard Reserve (AGR) status with the Army Reserves, which is considered active duty training (ACDUTRA). Between February 1988 and September 1994, he was on full time duty with the Army National Guard under 32 U.S.C.A. § 502, which is also considered ACDUTRA.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Des Moines, Iowa, Regional Office (RO) of the United States Department of Veterans Affairs (VA). Although the Milwaukee, Wisconsin, RO holds jurisdiction over the Veteran based on his residence, his claims were processed in Des Moines due to his VA employment status.
The December 2007 decision in pertinent part granted service connection for PTSD and assigned an initial 30 percent evaluation effective September 21, 2007; granted service connection for ASHD and assigned an initial 30 percent evaluation effective March 30, 2007; granted service connection for bilateral lower extremity diabetic neuropathy rated 20 percent each effective March 30, 2007; and denied service connection for hypertension. In an unappealed determination, an evaluation in excess of 20 percent for type II diabetes mellitus was denied.
In a November 2008 rating decision issued during the pendency of the appeal, the RO assigned increased 40 percent evaluations for the left and right leg diabetic neuropathies, effective from March 30, 2007. These awards represented full grants of the benefit sought on appeal, as the Veteran had specified that he was seeking the assigned 40 percent evaluations. Accordingly, no further question remains before the Board with respect to those issues. Moreover, the assignment of the increased evaluations brought the Veteran's combined disability evaluation to a Schedular 100 percent for the entirety of the appellate period, rendering moot any issue with regard to a claim for a total disability evaluation based on individual unemployability (TDIU).
The issue of service connection for hypertension, evaluation of PTSD, and TDIU entitlement are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. Intertwined claims for increased evaluation of diabetes mellitus and secondary service connection for a heart condition were received on March 30, 2007.
2. The claim for increased evaluation of diabetes was denied in a December 2007 rating decision; the separate claim for service connection of ASHD was granted.
CONCLUSION OF LAW
The criteria for an effective date prior to March 30, 2007, for service connection of ASHD are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1, 3.102, 3.400 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
This appeal arises from the Veteran's disagreement with the effective date of the benefit assigned following the grant of service connection for ASHD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.
VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Records from the Social Security Administration have not been obtained, but are not relevant to the issue decided here; such records are at best redundant of evidence already of record regarding factual entitlement to a benefit prior to March 2007. 38 C.F.R. § 3.159 (c) (2). Similarly, the VA examination of record is not relevant to the issue on appeal; it is the dates related to such evidence, and not their content, which is germane here.
Effective Date
Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The regulation carves out an exception for certain claims for increased evaluations; if a claim is received within one year of the factually ascertainable entitlement to an increased evaluation, the effective date of the increased evaluation is the date on which worsening of the disability is shown. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
The Veteran contends that service connection for ASHD is warranted from July 2006, when the condition was first diagnosed by private doctors. He argues that he filed a formal claim for the benefit within one year of the medical evidence of its diagnosis. Further, he alleges his claim should be considered one for an increased evaluation for already service-connected diabetes, and not an original claim of service connection for a new condition.
On March 30, 2007, a claim was received from the Veteran. He stated, "This is to report I now have coronary artery disease, unstable angina, and am now on insulin and medications for diabetes 4 times a day. I, also, have diabetic neuropathy in both feet and the left hand, and I am on medication for that. I, also, have high blood pressure. All of the heart conditions occurred after the diagnosis of diabetes." VA interpreted this claim as one for increased evaluation for diabetes based on insulin use, and as others for secondary service connection for cardiovascular and neurological complications of diabetes. Two assistance letters were sent to the Veteran, in May and October 2007, describing the claims in this manner.
However, the phrasing of the Veteran's claim may also be read as grouping the ASHD and diabetic medication use into a single claim. They are included in the same sentence, while other conditions are specifically separated out. The Veteran now contends that was his intent. His report of his intent is supported by the fact that he has not appealed the assigned effective date for service connection of diabetic neuropathy, also set as March 30, 2007. That condition was among those separated from the diabetes-specific allegations.
Moreover, the criteria for evaluation of diabetes mellitus specifically direct that the existence and severity of complications be considered in rating the disease. A 60 percent evaluation is assigned, in part, for complications that would not be compensable if separately evaluated; if those complications are compensable, a 100 percent evaluation is possible.
However, the rating criteria for diabetes are successive. "Successive" rating criteria is where the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). To warrant an evaluation in excess of the currently assigned 20 percent, the evidence must show that insulin, restriction of diet, and regulation of activities are all necessary. These are the criteria for a 40 percent evaluation; those for 60 percent and 100 percent require those factors plus additional factors, to include the presence of complications of diabetes such as ASHD. The RO determined that no regulation of activity was shown, and so denied the claim; the Veteran did not appeal.
At that point, the Veteran's ASHD was irrelevant to the claim for increased in diabetes; VA never advanced to or considered the question of secondary service connection in relation to the claim for increased diabetes evaluation. Such would have been legally improper.
VA therefore, correctly, considered an alternate and entirely separate claim of secondary service connection for ASHD. That claim was granted. Because the benefit awarded was based on an original claim for service connection, the laws and regulations applicable to such claims, and not to claims for increase, must be applied. In this case, although the evidence of record establishes the diagnosis of ASHD as a complication of diabetes in June 2006, the claim for secondary service connection of ASHD was not received until March 30, 2007. Law and regulation provides that the later of the date of receipt of the claim or the date entitlement arose establishes the effective date of the grant of service connection. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.
The correct effective date is assigned in this case, as March 30, 2007, is later that June 2006. Entitlement to the benefit sought is not warranted.
This case must be distinguished from those in which an increase for evaluation is received and the criteria for rating direct consideration of the existence and impact of related disabilities at all disability levels. For example, the criteria for evaluation of low back disabilities call for the separate evaluation of neurological conditions regardless of the severity of the limitation of motion of the back. In that case, evidence showing the presence of lumbar radiculopathy within a year of receipt of the formal claim for increase would warrant consideration of an earlier effective date. The radiculopathy is in that instance an additional manifestation of the low back, and not an entirely free-standing disability, as ASHD is with diabetes.
ORDER
An effective date for the grant of service connection for ASHD as a complication of diabetes, prior to March 30, 2007, is denied.
REMAND
Remand is required with regard to the remaining issues to secure compliance with VA's duty to assist the Veteran in substantiating his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Veteran alleges that his currently diagnosed hypertension was caused by service-connected diabetes mellitus, type II. In support of his allegation, he has submitted a statement from a VA nurse practitioner stating that the condition, diagnosed in July 2007, is "more likely than not associated with diabetes." Unfortunately, there is no accompanying rationale for the opinion. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the cited date of diagnosis of hypertension is incorrect; the Veteran had been diagnosed and put on medication in June 2006 by private doctors. The apparent reliance on an inaccurate factual record also undercuts the probative value of the favorable medical opinion. Reonal v. Brown, 5 Vet. App. 458, 460 (1993).
However, the negative medical opinion of record fares no better. In July 2007, a VA examiner confirmed the diagnosis of hypertension, and stated that it was "unrelated to diabetes mellitus." No rationale was provided in support of the bare statement, and hence it lack probative value as well. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).
Accordingly, remand is required to obtain an adequate examination and medical opinion on the etiology of hypertension.
Further, the Veteran indicated in an October 2007 VA treatment note that he had applied for, and was awaiting a decision regarding, disability benefits from the Social Security Administration (SSA). The records associated with such a claim would likely have information regarding the severity of current disabilities, such as PTSD, and may address the etiology of other, such as hypertension. VA has a duty to obtain all relevant records in the custody of a Federal agency. Such efforts must continue until the records are obtained, or until it can be certified that they are not available. 38 C.F.R. § 3.159(c)(2). As the Board cannot say that the SSA records are not relevant to issues currently on appeal, remand is required to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).
In light of the need for remand on the issue of PTSD, it is advisable to obtain an updated examination to ensure that the record reflects the current status of the disability. The Veteran was last examined in November 2007, almost five years ago. While he has not stated he is worse since that time, and VA treatment records from May 2008 indicate some improvement in his demeanor, the passage of time has rendered the evidence stale. NO records since November 2008 have been associated with the file, to include the Virtual VA system's electronic files. On remand, a review PTSD examination is required, and updated VA treatment records should be associated with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Associate with the claims file complete VA treatment records from the medical center in Milwaukee, Wisconsin, and all associated clinics, as well as any other VA facility identified by Veteran or in the record, for the period of November 2008 to the present.
2. Contact the Social Security Administration and request copies of all decisions regarding entitlement to disability or supplemental income benefits in the case of the Veteran, as well as copies of all supporting documentation considered in connection with such decisions.
3. AFTER COMPLETION OF DIRECTIVES 1 AND 2, schedule the Veteran for a VA hypertension examination. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.
The examiner must opine as to whether it is at least as likely as not that currently diagnosed hypertension caused or aggravated by service-connected diabetes mellitus, type II, any other service-connected disability, or military service directly.
A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010).
4. AFTER COMPLETION OF DIRECTIVES 1 AND 2, schedule the Veteran for a VA PTSD review examination. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.
The examiner must describe in detail the current signs, symptoms, and manifestations of PTSD. The examiner must indicate, to the extent possible, what portion of the Veteran's psychiatric impairment is related to service-connected PTSD and what portion is attributable to nonservice-connected factors or diagnoses. If it is not possible to differentiate between diagnoses or the effects thereof, such must be clearly stated. The examiner must comment on the findings of the November 2007 VA examiner who appears to indicate that such separation is possible.
A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010).
5. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs